The High Court is on Monday expected to deliver judgement in a case involving the controversial sale of Somalia State land in Nairobi during its civil war as Kenyan top officials watched.

The sale of the diplomatic property on which the embassy of the Republic of Somalia sat, during its lowest moment in history when Kenya was expected to be the custodian, might embarrass the host State Kenya within the world of diplomacy.

The case brings into sharp focus the role Vice-President Kalonzo Musyoka could have played in his official capacity then as Kenya’s diplomatic point-man.

Even more curious in the case is a certificate he signed in his capacity as Foreign Minister, which has featured in the court case. The certificate, produced in court by the purchasers of the property said Kenya had no diplomatic relations with Somalia and did not recognise any envoy from the neighbouring country.

At the time, three junior envoys from Somalia were protesting the sale of the embassy. Interestingly, the day after Kalonzo signed the certificate on the status of the Somalia Embassy, the three envoys were arrested.

Though Kalonzo, who is out of the country, was not directly involved in the case, Kenya is represented by Attorney General Amos Wako’s office.

Interestingly, of the Sh15 million in sale agreement, only a payment receipt of Sh8.8 million was produced in court as evidence. It was not immediately clear where the balance went.

The AG did not file any submissions or defence. Kalonzo’s Personal Assistant Mr Kaplich Barsito said: “The VP is aware of the case. But we are on official duty out of the country en route to South Korea.”

Kaplich said the VP hopes the court will protect the Somali government property.

“His certificate produced in court is only reflective of the diplomatic relations and cannot be used to sanction the sale of the property of the people of Somalia.”

The interest the case is attracting is discernible from the fact that senior officials from the Transitional Federal Government of Somalia flew into the country on Sunday and are expected at the Nairobi Law Courts where the judgement will be delivered.

The certificate on the status of the embassy at the time was used as the ‘license’ to fast track the sale and to arrest staff at the embassy who resisted the transfer. On Monday attention will be on Justice Msagha Mbogoli’s Court number 14, as he delivers what could be a landmark judgement regarding the status of a Foreign State’s property when it is in disarray.

The property standing on five acres of land was transferred to Nairobi businessmen Suleiman Rahemtulla Omar and Zarina Sulieman Omar by former Somali ambassador Ahmed Sheikh Mohamud for Sh15 million. The property located in the high cost Spring Valley, at the junction of Brookside Drive and Lower Kabete Road, is currently estimated to be worth Sh500 million.

During the hearing of the case, the certificate from Kalonzo, which was interpreted to mean that he okayed the sale, was produced by lawyers. The certificate was signed on February 21, 1995, when Somalia was going through one of its worst times in the civil war.

In the certificate, which appeared to disown a group of diplomats who were opposed to the sale, Kalonzo said: “Somalia became incapable of entering into diplomatic relations with Republic of Kenya and establishing or maintaining a diplomatic mission in Kenya when its civil authority collapsed on January 26, 1991, with the ouster of former President, the late Siad Barre.”

Diplomatic immunity

The certificate went on: “The Republic of Kenya has no diplomatic relations with Somalia and does not recognise the existence of the Somalia Embassy and its former diplomats in Kenya in terms of the Vienna Convention following the collapse of the Government or civil Authority in Somalia in January 1991.”

Citing the Privileges and Immunities Act and the Vienna Convention on diplomatic relations, Kalonzo also said Mohammed Omar Aden, Muse Fahiye Hersi, Zeynab Ali Osman, or any former Somali diplomats accredited to the Republic of Kenya by the Government of Somalia did not enjoy any diplomatic immunity under the laws of Kenya.

The three former diplomats of Somalia were then protesting against the sale of the embassy and are the plaintiffs in the case.

After Kalonzo’s letter, the three diplomats were arrested.

On January 25, 1995, barely three days after Kalonzo’s letter, over 25 officers from police and Immigration went to the compound and arrested everybody including the diplomats and everything including Somalia Government property was impounded and the buyer took over the property.

According to international practice, when a diplomatic property is being sold, the Foreign Minister of the host country is supposed to be informed and his consent secured, diplomatic sources told The Standard.

But on Monday, many Kenyans would want to know what the High Court would say about what seems to be dereliction on the part of the Foreign Affairs ministry then.

The case comes hot on the heels of the Tokyo Embassy saga in which irregularities caused public outrage and forced Foreign Affairs minister Moses Wetang’ula to step aside alongside his Permanent Secretary Mr Thuita Mwangi last week.

Legal redress

The case was filed by the former diplomats who sought legal redress and moved to court in a bid to recover the prime asset through a civil suit against the purchaser of the property. They want the courts to declare the sale illegal and cancel transfer of the property. In an amended plaint, Republic of Somalia is enjoined as the third plaintiff and a number of high-ranking Somalia officials.

During the hearing the AG was invited to the case and he restated the government’s position by affirming the contents of the certificate by the Minister for Foreign Affairs (Kalonzo) to the extent that there was no Somalia Government by 1994, which could authorise the sale and transfer of the property.

Lawyer Fred Athuok who is appearing for the Somalia Government argued there was clear evidence that the purported sale of Somali Embassy property was illegal and fraudulent.

Athuok had argued before Court that the Ministry of Lands of Kenya was wrong in sanctioning the sale and transfer of Somalia Embassy property and with available evidence, the ministry should cancel the transfer and registration as it is allowed to do so.

The property was then residence of the Somalia Ambassador, but it became the embassy-cum-residence when it moved from International Life House. The Somali Government bought it in 1973.

Yesterday, on visiting the property we found it occupied by tenants whose identity we could not immediately establish.

A guide to the Diplomatic Privileges and Immunities in Kenya spells out that when a foreign government intends to sell real property which it already owns in Kenya, the representative mission should inform Ministry of Foreign Affairs and International Co-operation.

Where a foreign government owns real property wishes to alter its use like changing a chancery into ambassador’s residence, the Ministry of Foreign Affairs should be informed.

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The Standard

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